{"id":41175,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/note-exchange-agreement-and-note-amendment-philip-morris-cos.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"note-exchange-agreement-and-note-amendment-philip-morris-cos","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/note-exchange-agreement-and-note-amendment-philip-morris-cos.html","title":{"rendered":"Note Exchange Agreement and Note Amendment &#8211; Philip Morris Cos. Inc. and Kraft Foods North America Inc."},"content":{"rendered":"<pre>                 AMENDED AND RESTATED NOTE EXCHANGE AGREEMENT\n                  --------------------------------------------\n                               AND NOTE AMENDMENT\n                               ------------------\n\n\n\n         This AMENDED AND RESTATED NOTE EXCHANGE AGREEMENT AND NOTE AMENDMENT\n(the \"Agreement\"), is made and entered into as of March 16, 2001, by and among\nPhilip Morris Companies Inc., a Virginia corporation (\"PM\"), PM Holdings of\nDelaware LLC, a Delaware limited liability company (\"LLC\"), and Kraft Foods\nNorth America, Inc. (formerly Kraft Foods, Inc.), a Delaware corporation\n(\"KFNA\").\n\n                                    RECITALS\n                                    --------\n\n         WHEREAS, KFNA, as successor in interest to Kraft, Inc., has issued to\nPM (i) a promissory note dated April 1, 1989, and amended March 30, 1999, in the\namount of $5,000,000,000 (the \"KFNA $5 Billion Note\"), (ii) a promissory note\ndated December 1, 2000, in the amount of $11,000,000,000 (the \"KFNA $11 Billion\nNote\"), and (iii) a promissory note dated December 11, 2000, in the amount of\n$4,000,000,000 (the \"KFNA $4 Billion Note\" and, collectively with the KFNA $5\nBillion Note and the KFNA $11 Billion Note, the \"KFNA Notes\").\n\n         WHEREAS, pursuant to the Note Exchange Agreement, dated as of December\n15, 2000, among PM, LLC and KFNA (the \"Note Exchange Agreement\"), PM assigned\nand transferred its rights under the KFNA Notes to LLC, its wholly owned\nsubsidiary, in exchange for the issuance by LLC to PM of (i) a promissory note\ndated December 15, 2000 in the amount of $5,000,000,000 (the \"LLC $5 Billion\nNote\"), (ii) a promissory note dated December 15, 2000 in the amount of\n$11,000,000,000 (the \"LLC $11 Billion Note\") and (iii) a promissory note dated\nDecember 15, 2000 in the amount of $4,000,000,000 (the \"LLC $4 Billion Note\"\nand, collectively with the LLC $5 Billion Note and the LLC $11 Billion Note, the\n\"LLC Notes\").\n\n         WHEREAS, KFNA consented to such assignment and transfer of the KFNA\nNotes by PM to LLC and acknowledged LLC as the assignee of PM with respect to\nthe KFNA Notes and to make the other agreements set forth herein.\n\n         WHEREAS, PM, LLC and KFNA wish to amend certain provisions of the KFNA\nNotes and to amend and restate the Note Exchange Agreement.\n\n         NOW, THEREFORE, in consideration of the Recitals and of the covenants\nand agreements set forth herein and other good and valuable consideration, the\nreceipt and sufficiency of which are hereby acknowledged, it is hereby agreed\nthat:\n\n         1.   Exchange. (a) PM hereby agrees to assign, and LLC hereby agrees to\n              --------\naccept such assignment, effective for all purposes as of December 15, 2000 (the\n\"Exchange Date\"), of PM's rights under the KFNA Notes, including without\nlimitation PM's right to receive principal and interest payments thereunder;\nprovided that all interest accruing under the KFNA Notes up to but not including\n--------\nthe Exchange Date shall be for the account of PM and LLC shall be obligated,\nupon receipt from KFNA, to pay such amount to PM.\n\n \n                  (b)      LLC agrees to issue the LLC Notes to PM effective as\nof the Exchange Date.\n\n         2.       Consent and Acknowledgment of KFNA.  KFNA hereby consents\n                  ----------------------------------\nto the assignment of the KFNA Notes by PM to LLC and acknowledges LLC's rights\nunder the KFNA Notes as the assignee of PM.\n\n         3.       Mandatory Prepayment of Kraft Notes.\n                  -----------------------------------\n\n                  (a)     The parties agree that until the KFNA Notes have\nbeen repaid in full, an amount equal to the net proceeds of any external\nfinancings of any kind conducted by KFNA or Kraft Foods Inc., whether through\nthe issuance of debt or equity (the \"Prepayment Amount\"), shall be payable by\nKFNA to LLC or its assignees as a mandatory prepayment of principal of the KFNA\nNotes in the priority set forth in Section 3(b) immediately upon receipt of such\nPrepayment Amount by KFNA or Kraft Foods Inc. Notwithstanding the foregoing, no\nprepayment of the KFNA Notes shall be required in respect of (i) any short-term\ndebt, (ii) any compensation-related equity issuance, (iii) the portion of the\nnet proceeds of any external long-term debt financings issued after the date\nhereof (\"New Debt\") up to an amount equal to the portion of the aggregate\nprincipal amount of external long-term debt of Kraft Foods Inc. and its\nconsolidated subsidiaries outstanding on the date hereof (\"Existing Debt\")\nhaving scheduled maturities within the same calendar year as such New Debt\nissuance, or (iv) New Debt issued within the same calendar year as maturing New\nDebt up to the amount such maturing New Debt was used to refinance Existing Debt\npursuant to clause (iii) above. In the event multi-tranche New Debt is issued\nand only a portion of the proceeds thereof is used to refinance maturing\nExisting Debt pursuant to clause (iii) above or New Debt pursuant to clause (iv)\nabove, such portion shall be deemed to have matured first, on the earliest\nmaturity date of such refinancing and thereafter, any balance remaining shall be\ndeemed to have matured on the next earliest maturity date of such refinancing\nuntil such portion is fully allocated.\n\n                  (b)     In the event of a mandatory prepayment pursuant to\nSection 3(a), the Prepayment Amount shall be applied toward the prepayment of\nthe KFNA Notes in the following order of priority:\n\n                  first, to the prepayment of the KFNA $11 Billion Note;\n\n\n                  second, if the KFNA $11 Billion Note has been paid in full,\n                  the balance shall be applied to the prepayment of the KFNA $4\n                  Billion Note; and\n\n\n                  third, if the KFNA $4 Billion Note has been paid in full, the\n                  balance shall be applied to the prepayment of the KFNA $5\n                  Billion Note.\n\n\n                  (c)     The unpaid principal balance of the KFNA Notes,\ntogether with any accrued but unpaid interest on the KFNA Notes, shall become\nimmediately due and payable, without presentment, demand or other formalities of\nany kind, all of which are hereby expressly waived by KFNA, on the date on which\nPM ceases to control the vote, directly or indirectly, of shares representing\nmore than 50% of the aggregate voting power of all the voting stock of KFNA.\n\n                                       2\n\n \n         4.       Mandatory Prepayment of LLC Notes.\n                  ---------------------------------\n\n                  (a)     LLC and PM agree that until the LLC Notes have been\nprepaid in full, an amount equal to the Prepayment Amount received by LLC from\nKFNA pursuant to Section 3(a) shall be payable by LLC to PM as a mandatory\nprepayment of principal of the LLC Notes in the priority set forth in Section\n4(b) immediately upon receipt of such payment by LLC.\n\n                  (b)     In the event of a mandatory prepayment pursuant to\nSection 4(a), such prepayment shall be applied toward the prepayment of the LLC\nNotes in the following order of priority:\n\n\n              first, to the prepayment of the LLC $11 Billion Note;\n\n\n              second, if the LLC $11 Billion Note has been paid in full, the\n              balance shall be applied to the prepayment of the LLC $4 Billion\n              Note; and\n\n\n              third, if the LLC $4 Billion Note has been paid in full, the\n              balance shall be applied to the prepayment of the LLC $5 Billion\n              Note.\n\n\n                  (c)     The unpaid principal balance of the LLC Notes,\ntogether with any accrued but unpaid interest on the LLC Notes, shall become\nimmediately due and payable, without presentment, demand or other formalities of\nany kind, all of which are hereby expressly waived by LLC, on the date on which\nPM ceases to control the vote, directly or indirectly, of shares representing\nmore than 50% of the aggregate voting power of all the voting stock of Kraft\nFoods Inc.\n\n\n         5.       Conflicts.  The Kraft Notes and the LLC Notes are governed by\n                  ---------\nthe provisions of this Agreement. In the event of a conflict, the provisions of\nthis Agreement shall prevail.\n\n\n         6.       Governing Law. The substantive laws of the Commonwealth of\n                  -------------\nVirginia shall govern the validity, construction, enforcement and interpretation\nof this Agreement. In an event of a dispute involving this Agreement, the\nparties irrevocably agree that venue of such dispute shall lie exclusively in\nany court of competent jurisdiction in the City of Richmond, Virginia.\n\n                                       3\n\n \n         IN WITNESS WHEREOF, the parties have caused this Agreement to be duly\nexecuted in counterparts as of the day and year first above written.\n\n\n\n\n\n                                   PHILIP MORRIS COMPANIES INC.\n\n\n\n\n                                   By: \/s\/ Nancy J. De Lisi\n                                       ------------------------\n                                   Name: Nancy J. De Lisi\n                                   Title: Vice President Finance and Treasurer\n\n\n                                   PM HOLDINGS OF DELAWARE LLC\n\n\n                                   By: \/s\/ Nancy J. De Lisi\n                                       ------------------------\n                                   Name: Nancy J. De Lisi\n                                   Title: Manager\n\n\n                                   KRAFT FOODS NORTH AMERICA, INC.\n\n\n                                   By: \/s\/ Betsy D. Holden\n                                       ------------------------\n                                   Name: Betsy D. Holden\n                                   Title: President and \n                                          Chief Executive Officer\n\n                                       4\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8003],"corporate_contracts_industries":[9424],"corporate_contracts_types":[9560,9567],"class_list":["post-41175","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-kraft-foods-inc","corporate_contracts_industries-food__diversified","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41175","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41175"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41175"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41175"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41175"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}